Evidence Workshop

Guidelines:
-

Civil or criminal?
Where are we in that proceeding procedurally?
Purpose for which evidence is being offered?
o TOMA Hearsay, etc.
Is evidence relevant?

Areas:
-

Character Evidence
Impeachment
Hearsay

1. Balance prejudice vs. probative.

a. Even relevant evidence can be excluded if prejudicial evidence
outweighs probative value
2. Rule 403
a. Prejudice > probative
b. Cumulative evidence
c. Waste of time
d. Confuse issues
3. Judicial Notice
a. May take judicial notification of facts that are capable of ready and
accurate determination (things you can look up, ex. Almanac)
b. And facts that are common knowledge within jurisdiction of the court
c. When judge takes notice it is conclusive on the jury in a civil case
d. In a criminal case prosecution no longer has to prove this
4. Relevance
a. Look at prejudice > probative
5. Best Evidence Rule
a. When trying to establish contents of a writing, the original must be
produced or shown to be unavailable
i. Preference for the original
b. Here we are trying to prove the contents of the writing
6. Handwriting authentication
a. Familiarity before trial
b. Expert
c. Trier of fact
d. Voice authentication
i. Familiarity before trial
ii. Familiarity FOR trial
iii. Expert
iv. Trier of fact
7. Character Evidence
a. Guidance Points
i. Criminal

1. Prosecution cannot introduce bad character reputation

evidence if purpose is to show that the D acted in
conformity and committed the crime
2. Defendant is allowed to show relevant good character
traits
a. If D does this limited to reputation evidence only
not specific acts
3. If D does present evidence of good character, he has
opened the door and prosecution can rebut with bad
reputation evidence
4. Evidence of prior crimes/bad acts to show that D probably
acted unlawfuly again. May be admissible to show
something else
a. M
Motive
b. I
Intent
c. M
Mistake, absence of
d. I
Identity
e. C
Common plan/scheme
5. If D testifies he places his character for truthfulness at
issue and P can attack
ii. Civil
1. Inadmissible if directly at issue or an essential element of
Ps claim or defense
a. Defamation
b. Child Custody
c. Negligent Entrustment
d. Self-Defense
2. Litigant has some other person other than conformity for
the character evidence it will be admitted
3. Party testifies they place their character for truthfulness
at issue
8. Want to introduce the evidence to show intent/common scheme
a. NOT propensity
9. This is his modus operandi
a. This ISNT propensity
10.Impeachment
a. 5 major ways to impeach credibility of witness
i. Prior Inconsistent Statement
1. Only comes in to impeach NOT as truth
2. Can come in as truth if under oath and at a legal
proceeding
ii. Bias/Motive
1. Always admissible even through extrinsic evidence
iii. Prior Conviction
1. Dishonesty/false statement it can be used no discretion
2. Crime NOT involving dishonesty only felonies and judge
has discretion
3. Cant be too remote (too remote if more than 10 yrs has
passed since release from prison)

iv. Specific acts of misconduct which bear on truthfulness

1. Can inquire on cross
a. Court has discretion to prevent you from doing this
b. No extrinsic evidence
v. Bad reputation for truthfulness
1. Allows extrinsic evidence
11.Cross-Examination
a. Prior bad acts relating to truthfulness that isnt a conviction
12.Calling juror from first trial as a witness
a. Can use to impeach AND as substantive evidence
b. Prior inconsistent statement
i. Can be used to impeach and as substantive evidence IF the
statement was made as part of trial
13.Prior inconsistent statement given under oath at a deposition
a. You can impeach your own witness
b. We arent refreshing recollection we are using for substantive evidence
14.Hearsay
a. Out of court statement offered to prove truth of the matter asserted
i. Find the statement
ii. Find the declarant
iii. Purpose for which evidence is being offered
1. TOMA = hearsay and needs an exception to get in
a. Exceptions
i. Present Sense Impression
ii. Excited Utterance
iii. Statement concerning physical/mental
condition
iv. Statement for purpose of medical treatment
v. Recorded recollection
vi. Business records exception
vii. Former testimony (unavailable)
viii. Dying declaration (unavailable)
ix. Statement against interest (unavailable)
b. Non-hearsay
i. Statements that CAN come in for
substance/truth of the matter asserted IF
declarant testifies at trial or hearing and is
subject to cross
1. Admission
2. Prior Sworn inconsistent statements
3. Prior consistent statements
4. Prior identifications
15.Dying declaration
a. Belief of death must be imminent
b. Statement must be about cause or circumstances surrounding death
c. Declarant must be unavailable
d. Only applies in civil cases or homicides
16.Present sense impression
a. Need a statement describing or explaining an event made while the
declarant was observing the event or immediately thereafter

i. Doesnt require unavailability

17.Statement for medical diagnosis or treatment
a. If it was made for medical diagnosis or treatment it can come in BUT
it has to be bland and not contain fault
b. Double-hearsay
i. First level is the medical diagnosis
ii. Second is by the hospital worker and comes in as business
records
18.When a statement is introduced the adverse party may introduce any other
statement which, by fairness, ought to be considered
19.Business records
a. Declarant must have personal knowledge of the facts stated or must
have gotten the info from someone who transmitted the information in
ordinary course of business
20.Vicarious admission
a. Statement by an agent concerning any matter within the scope of the
agency is admissible within the scope of employment
21.Admission by party opponent so it can be used to impeach and as evidence
22.Offer to pay medical expenses
a. Offers to settle inadmissible
b. Offer to pay medical expenses admissible
23.State of mind hearsay exception
a. Circumstantial evidence offered to show declarants state of mind,
present situation, etc
24.Privilege
a. Spousal
i. Destroyed by presence of 3rd party
b. Atty-client
i. Protects confidential communication b/w atty and client
ii. Presence of secretary doesnt destroy privilege
25.Lay witness can testify to anything that is based in their perception/personal
knowledge
a. Experts can base their opinions on all kinds of things/other peoples
perceptions